ArtsWatch: Pirates At Bay?

Diplomats sign international anticounterfeiting agreement, start ratification process
October 10, 2011 -- 12:12 pm PDT
By Philip Merrill / GRAMMY.com

The Recording Academy actively represents the music community on such issues as intellectual property rights, music piracy, archiving and preservation, and censorship concerns. In pursuing its commitment to addressing these and other issues, The Recording Academy undertakes a variety of national initiatives. ArtsWatch is a key part of an agenda aimed at raising public awareness of and support for the rights of artists. To become more involved, visit Advocacy Action @ GRAMMY.com and sign up for Advocacy Action E-lerts.

On Oct. 1 in Tokyo the Anti-Counterfeiting Trade Agreement was signed by representatives from Australia, Canada, Japan, Republic of Korea, Morocco, New Zealand, Singapore, and the United States. The ceremony was also attended by diplomats representing the European Union, Mexico and Switzerland. The agreement goes into effect once six nations have deposited documents indicating acceptance, approval or ratification with the Japanese government. The United States may not see a need to vote on the agreement since in some ways ACTA exports the U.S. approach to the issue — enabling a potentially fruitful new framework for international cooperation and coordination of intellectual property enforcement. U.S. trade ambassador Miriam Sapiro said, "Since ACTA is consistent with United States law and does not require further legislation on our part, we anticipate depositing our instrument of acceptance without delay." RIAA Executive Vice President, International Neil Turkewitz said, "Policymakers around the globe have increasingly come to recognize the damaging impact of piracy on cultural and economic development, and ACTA represents a step in the evolution towards a global response to the problem. ... We are witnessing a sea-change in the level of understanding of the importance of these issues." This sea-change includes the active role many consumer advocates played while the final language was still under negotiation. For example, in a blog post entitled "What We Won In ACTA," Public Knowledge wrote, "While the substantive improvements in text are a major victory, equally significant are the victories that do not relate to the text of the agreement. First, public interest representatives and technology companies were able to demonstrate that they were stakeholders whose views could not be ignored. Similarly, ordinary citizens became much more engaged with the process than they had been with earlier IP agreements." As with any major agreement, this wider base of stakeholders makes it stronger — an advantage for the creative community that needs improved IP protection.

The Copyright Office is soliciting public comments due by Nov. 28 on its proposed online registration system that would enable Internet service providers to better designate agents to receive notice of infringement claims. A paper-based system has been in place since 1998 when the Digital Millennium Copyright Act created a safe harbor from infringement claims for ISPs in compliance with its takedown procedures. That paper-based database, which was only intended to be an interim procedure, presently contains outdated and otherwise inaccurate information. The database would coexist with the new online database for one year, before being discontinued. The specific requests for comment in the notice in the Federal Register mostly affect ISPs, however, the notice explains, "the whole point of the database is to make it easy to locate a service provider's designated agent and to serve a notification of claimed infringement on that agent." In other words, this upgrade will create a modern online system intended to become a workhorse to ease the burden of submitting takedown notices. The proposal's details could also figure prominently in future infringement litigation. For example, storage of date-specific versions of ISP safe harbor compliance information. Content owners should consider whether it is to their advantage to submit initial comments. The deadline for reply comments is Dec. 27, which will give content owners a chance to react to the first round.

The first-round comment period to propose DMCA exemptions from the prohibition on circumventing access controls is now open through Dec. 1. This procedure is repeated every three years and is initially managed by the Register of Copyrights. The results of the fourth review were announced in Aug. 2010 by the Librarian of Congress. Numerous current exemptions are back on the review table. For example, consumers unlocking mobile phone handsets are presently exempt from DMCA penalties. The visually impaired are presently allowed to hack e-books in order to convert them to braille or to use read-aloud software, but this exemption almost didn't make it into the fourth set. Teachers, researchers and students will likely bring new arguments for greater creative license to break through security technology in order to capture clips of movies and other audiovisual fare, and there is a related issue of how adequate low-resolution video or still images are in different academic contexts. The present rules are complex and the new ones are bound to be so as well. Software and hardware is generally available to make many forms of hacking easy for consumers, so this formal procedure primarily impacts public life and discourse while circumventing access controls in private remains straightforward but prohibited.

On Oct. 2 California Gov. Jerry Brown (D-Calif.) signed SB550 into law, improving the ability of antipiracy enforcement authorities to inspect CD and DVD manufacturing plants and verify their compliance with copyright regulations.

Canada's Copyright Modernization Act was introduced to the newly constituted Parliament on Sept. 29. The legislation formerly, known as Bill C-32, died in March when the Canadian government lost a no confidence vote. Its language is unchanged from the previous version and legislators are hoping for passage through the House of Commons by the end of the year.

Updated statistics on France's three-strikes Internet antipiracy program show that first warnings have now been sent by the HADOPI agency to 650,000 computer users. A total of 44,000 users have now received second-strike warnings — more than double the number announced in July. Back then only 10 users had graduated to their third strike; however, that total has now reached 60 users. Penalties have not yet been imposed but can include a fine equivalent to more than $2,000 and Internet disconnection for up to one month.

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